The tenth amendment is in these words:
The powers not delegated to the United States by the
constitution, nor prohibited by it to the States, are reserved
to the States respectively, _or to the people_.
This amendment, equally with the ninth, secures to "the people" all
their natural rights. And why?
Because, in truth, no powers at all, neither legislative, judicial, nor
executive, had been "delegated to the United States by the
constitution."
But it will be said that the amendment itself implies that certain
lawmaking "powers" had been "delegated to the United States by the
constitution."
No. It only implies that those who adopted the amendment _believed_ that
such lawmaking "powers" had been "delegated to the United States by the
constitution."
But in this belief, they were entirely mistaken. And why?
1. Because it is a natural impossibility that any lawmaking "powers"
whatever can be delegated by any one man, or any number of men, to any
other man, or any number of other men.
Men's natural rights are all inherent and inalienable; and therefore
cannot be parted with, or delegated, by one person to another. And all
contracts whatsoever, for such a purpose, are necessarily absurd and
void contracts.
For example. I cannot delegate to another man any right to _make_
laws--that is, laws of his own invention--and compel me to obey them.
Such a contract, on my part, would be a contract to part with my natural
liberty; to give myself, or sell myself, to him as a slave. Such a
contract would be an absurd and void contract, utterly destitute of all
legal or moral obligation.
2. I cannot delegate to another any right to make laws--that is, laws of
his own invention--and compel a third person to obey them.
For example. I cannot delegate to A any right to make laws--that is,
laws of his own invention--and compel Z to obey them.
I cannot delegate any such right to A, because I have no such right
myself; and I cannot delegate to another what I do not myself possess.
For these reasons no lawmaking powers ever could be--and therefore no
lawmaking powers ever were--"delegated to the United States by the
constitution"; no matter what the people of that day--any or all of
them--may have attempted to do, or may have believed they had power to
do, in the way of delegating such powers.
But not only were no lawmaking powers "delegated to the United States by
the constitution," but neither were any _judicial_ powers so delegated.
And why? Because it is a natural impossibility that one man can delegate
his judicial powers to another.
Every man has, by nature, certain judicial powers, or rights. That is to
say, he has, by nature, the right to judge of, and enforce his own
rights, and judge of, and redress his own wrongs. But, in so doing, he
must act only in accordance with his own judgment and conscience, _and
subject to his own personal responsibility, if, through either ignorance
or design, he commits any error injurious to another_.
Now, inasmuch as no man can delegate, or impart, his own judgment or
conscience to another, it is naturally impossible that he can delegate
to another his judicial rights or powers.
So, too, every man has, by nature, a right to judge of, and enforce, the
rights, and judge of, and redress the wrongs, of any and all other men.
This right is included in his natural right to maintain justice between
man and man, and to protect the injured party against the wrongdoer.
But, in doing this, he must act only in accordance with his own judgment
and conscience, and subject to his own personal responsibility for any
error he may commit, either through ignorance or design.
But, inasmuch as, in this case, as in the preceding one, he can neither
delegate nor impart his own judgment or conscience to another, he cannot
delegate his judicial power or right to another.
But not only were no lawmaking or judicial powers "delegated to the
United States by the constitution," neither were any executive powers so
delegated. And why? Because, in a case of justice or injustice, it is
naturally impossible that any one man can delegate his executive right
or power to another.
Every man has, by nature, the right to maintain justice for himself, and
for all other persons, by the use of so much force as may be reasonably
necessary for that purpose. But he can use the force only in accordance
with his own judgment and conscience, and on his own personal
responsibility, if, through ignorance or design, he commits any wrong to
another.
But inasmuch as he cannot delegate, or impart, his own judgment or
conscience to another, he cannot delegate his executive power or right
to another.
_The result is, that, in all judicial and executive proceedings, for the
maintenance of justice, every man must act only in accordance with his
own judgment and conscience, and on his own personal responsibility for
any wrong he may commit; whether such wrong be committed through either
ignorance or design._
The effect of this principle of personal responsibility, in all judicial
and executive proceedings, would be--or at least ought to be--that no
one would give any judicial opinions, or do any executive acts, except
such as his own judgment and conscience should approve, _and such as he
would be willing to be held personally responsible for_.
No one could justify, or excuse, his wrong act, by saying that a power,
or authority, to do it had been delegated to him, by any other men,
however numerous.
For the reasons that have now been given, neither any legislative,
judicial, nor executive powers ever were, or ever could have been,
"delegated to the United States by the constitution"; no matter how
honestly or innocently the people of that day may have believed, or
attempted, the contrary.
And what is true, in this matter, in regard to the national government,
is, for the same reasons, equally true in regard to all the State
governments.
But this principle of personal responsibility, each for his own judicial
or executive acts, does not stand in the way of men's associating, at
pleasure, for the maintenance of justice; and selecting such persons as
they think most suitable, for judicial and executive duties; and
_requesting_ them to perform those duties; and then paying them for
their labor. But the persons, thus selected, must still perform their
duties according to their own judgments and consciences alone, and
subject to their own personal responsibility for any errors of either
ignorance or design.
To make it safe and proper for persons to perform judicial duties,
subject to their personal responsibility for any errors of either
ignorance or design, two things would seem to be important, if not
indispensable, _viz._:
1. That, as far as is reasonably practicable, all judicial proceedings
should be in writing; that is, that all testimony, and all judicial
opinions, even to quite minute details, should be in writing, and be
preserved; so that judges may always have it in their power to show
fully what their acts, and their reasons for their acts, have been; and
also that anybody, and everybody, interested, may forever after have the
means of knowing fully the reasons on which everything has been done;
and that any errors, ever afterwards discovered, may be corrected.
2. That all judicial tribunals should consist of so many judges--within
any reasonable number--as either party may desire; or as may be
necessary to prevent any wrong doing, by any one or more of the judges,
either through ignorance or design.
Such tribunals, consisting of judges, numerous enough, and perfectly
competent to settle justly probably ninety-nine one-hundredths of all
the controversies that arise among men, could be obtained in every
village. They could give their immediate attention to every case; and
thus avoid most of the delay, and most of the expense, now attendant on
judicial proceedings.
To make these tribunals satisfactory to all reasonable and honest
persons, it is important, and probably indispensable, that all judicial
proceedings should be had, _in the first instance_, at the expense of
the association, or associations, to which the parties to the suit
belong.
An association for the maintenance of justice should be a purely
voluntary one; and should be formed upon the same principle as a mutual
fire or marine insurance company; that is, each member should pay his
just proportion of the expense necessary for protecting all.
A single individual could not reasonably be expected to delay, or
forego, the exercise of his natural right to enforce his own rights, and
redress his own wrongs, except upon the condition that there is an
association that will do it promptly, and without expense to him. But
having paid his proper proportion of the expense necessary for the
protection of all, he has then a right to demand prompt and complete
protection for himself.
Inasmuch as it cannot be known which party is in the wrong, until the
trial has been had, the expense of both parties must, _in the first
instance_, be paid by the association, or associations, to which they
belong. But after the trial has been had, and it has been ascertained
which party was in the wrong, and (if such should be the case) so
clearly in the wrong as to have had no justification for putting the
association to the expense of a trial, he then may properly be compelled
to pay the cost of all the proceedings.
If the parties to a suit should belong to different associations, it
would be right that the judges should be taken from both associations;
or from a third association, with which neither party was connected.
If, with all these safeguards against injustice and expense, a party,
accused of a wrong, should refuse to appear for trial, he might
rightfully be proceeded against, in his absence, if the evidence
produced against him should be sufficient to justify it.
It is probably not necessary to go into any further details here, to
show how easy and natural a thing it would be, to form as many voluntary
and mutually protective judicial associations, as might be either
necessary or convenient, in order to bring justice home to every man's
door; and to give to every honest and dishonest man, all reasonable
assurance that he should have justice, and nothing else, done for him,
or to him.